State v. Johnson

• Decision Date: 10 July 2009
• Docket Number: No. 07-0142.,07-0142.
• Citation: 770 N.W.2d 814
• Parties: STATE of Iowa, Appellee, v. Kevin Demale JOHNSON, Appellant.
• Court: Iowa Supreme Court

770 N.W.2d 814

STATE of Iowa, Appellee, v. Kevin Demale JOHNSON, Appellant.

No. 07-0142.

Supreme Court of Iowa.

July 10, 2009.

Tod J. Deck, Sioux City, for appellant, and Kevin Johnson, Anamosa, pro se.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Patrick Jennings, County Attorney, and Jill Pitsenbarger, Assistant County Attorney, for appellee.

HECHT, Justice.

A defendant appeals his conviction following a bench trial on two separate class "D" felony charges: failure to register as a sex offender (second offense) and failure to appear at trial. Although the defendant was charged as a habitual offender, the district court rejected, without holding a separate hearing, the State's claim as to defendant's habitual offender status. On appeal, the defendant contends his trial was not held within the time limit imposed under the Interstate Agreement on Detainers (IAD) and claims the district court erred in denying his motion to dismiss. Alternatively, the defendant contends there was insufficient evidence to support his convictions. The State cross-appeals asserting the district court erred in failing to bifurcate the determination of the defendant's habitual offender status from the guilt phase of trial. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background.

On September 9, 2005, Kevin Demale Johnson was charged with various criminal offenses.¹ Johnson was arraigned on those charges on September 29, 2005. Attorney Peter Monzel was appointed to represent Johnson. A trial date was scheduled for January 10, 2006, and Johnson was released from jail consistent with a bond agreement signed on the date of arraignment.²

Monzel had several in-person and telephonic contacts with Johnson in the weeks following the arraignment. The last of these contacts occurred on December 12, 2005, when Monzel informed Johnson of his intent to seek a continuance of the trial date. Monzel advised Johnson that a new trial date would not be determined until the January 4, 2006 pretrial conference was concluded.³

On or about December 23, 2005, Johnson gathered his possessions and vacated his apartment on Jackson Street in Sioux City, Iowa. After vacating the apartment, Johnson apparently stayed several days in motel rooms and at his mother's Sioux City home. Johnson was formally evicted from the Jackson Street apartment. A writ of removal was issued on December 23, 2005, and when the apartment manager entered the apartment on December 27, 2005, she found the abode completely empty of Johnson's possessions and vacant of residents.⁴ On December 28, 2005, Officer Jay Fleckenstein of the Sioux City Police Department visited the premises and concluded Johnson had vacated the apartment.⁵

On January 3, 2006, Monzel filed a motion for continuance consistent with his discussions with Johnson. Monzel was unaware at that time of the fact that Johnson had departed Iowa on January 3, 2006 in a car headed for Arizona.⁶ The motion for continuance was never considered by the district court, as Johnson failed to appear at the January 4 pretrial conference.⁷ On January 13, 2006, after being informed that Johnson was no longer residing at the Jackson Street apartment, the Woodbury County attorney charged Johnson with failure to register as a sexual offender (second offense) because he had failed to register at a new address or as a transient within five days after vacating his old residence as required by Iowa Code section 692A.3. See Iowa Code § 692A.7(1) (2005).

Johnson claims he arrived in Arizona on January 8 or 9. Shortly after arriving in Arizona, Johnson was arrested for attempting to elude police.⁸ He was subsequently convicted and sentenced on that charge to serve eighteen months in an Arizona prison. While imprisoned in Arizona, Johnson was notified of a detainer lodged against him for failure to register in Iowa as a sex offender (second offense). On April 5, 2006, Johnson executed an "Arizona Department of Corrections Agreement on Detainers — Form II" requesting a "Final Disposition be made on . . . indictments, information or complaints now pending." Johnson's request under the IAD for final disposition of the Iowa charges listed the following offenses: failure to appear for the January 10 trial (case number FECR053494), failure to appear for the January 4 pretrial conference (case number FECR053492), failure to register as a sex offender, and other criminal charges unrelated to this appeal. However, at the time Johnson completed the IAD form II, the only pending "indictment, information or complaint" relevant to this appeal was the one charging him for failure to register as a sex offender (second offense).⁹

The Arizona Department of Corrections notified the Woodbury County attorney's office by letter of Johnson's request for final disposition of the charges. The letter correctly informed the State of Iowa that failure to act on the untried Iowa charges within the time constraints of the IAD would result in the dismissal of the charges against Johnson. A copy of Johnson's IAD form II was attached to the letter which was received in the Woodbury County attorney's office on April 14, 2006.

After receiving the letter, an assistant Woodbury County attorney executed IAD forms notifying the Arizona Department of Corrections of the State of Iowa's intention to take custody of Johnson. Johnson was transported from Arizona to Sioux City, Iowa, where he was booked and jailed on June 2, 2006. On June 5, Johnson was charged with failure to appear at the January 4 pretrial conference and the January 10 trial. Monzel withdrew from his representation of Johnson on June 15, 2006, as he anticipated being called to testify in Johnson's trial, and replacement counsel was appointed.

On June 29, 2006, Johnson was arraigned on three charges which are the subject of this appeal: (1) failure to register as a sex offender (second offense), (2) failure to appear at the January 4 pretrial conference, and (3) failure to appear at the January 10 trial. Johnson pleaded not guilty on all counts, and trial was set for August 22, 2006.¹⁰ On August 4, 2006, Johnson executed a waiver of his right to be tried within ninety days after the information was filed. See Iowa R.Crim. P. 2.33(2)(b). Notably, the waiver made no reference to a waiver of time limitations under the IAD.

On August 15, 2006, the prosecutor and Johnson's counsel orally agreed to continue the trial to October 31, 2006. This new date for the commencement of trial was 200 days after Johnson's IAD notification was received by the Woodbury County attorney. The district court granted the continuance in an order that did not disclose the court's rationale for granting the continuance.

On October 24, 2006, after the 180-day time limit for trying Johnson had expired under the IAD, Johnson, his attorney, and the prosecutor, agreed to another continuance and the court entered an order continuing the trial to December 12, 2006. This order cited the unavailability of a witness as the reason for granting the continuance of the trial scheduled for October 31, 2006.¹¹

On November 8, 2006, Johnson filed a written waiver of his right under the IAD to be tried within 180 days. Notably, the waiver was filed 208 days after Johnson demanded a timely final disposition of the Iowa charges under the IAD. Soon thereafter, Johnson's counsel filed a motion to dismiss the charges on the ground the State had failed to timely try Johnson as required by the IAD. Johnson filed a pro se motion to dismiss asserting arguments substantially similar to those made in the motion filed by his counsel. The State resisted, and the court denied both motions. The district court concluded the August 15, 2006 continuance was not in compliance with the IAD, but that the October 24, 2006 continuance met the requirements of the IAD and operated as a valid waiver of Johnson's right under the IAD to a timely trial despite the fact the continuance was granted after the IAD deadline had passed.

A bench trial on the charges commenced on December 12, 2006. Two days later, the district court filed its "Findings of Fact, Conclusions of Law, Verdict and Order." Johnson was convicted for failure to register as a sex offender (second offense) and for failure to appear at trial, but he was acquitted for failing to appear at the pretrial conference. In the same order, the court concluded the State had failed to prove Johnson was a habitual offender. The court did not hold a separate hearing on the habitual offender issue before entering the order adjudicating that issue.

On December 18, 2006, the State filed a motion to establish Johnson's habitual offender status. The State's motion asserted the determination of whether Johnson was a habitual offender should have been bifurcated from the guilt phase of trial. At the subsequent sentencing hearing, the district court heard arguments on the State's motion, denied the motion, reaffirmed its prior ruling on Johnson's status as a habitual offender, and concluded Iowa Rule of Criminal Procedure 2.19(9) does not require bifurcation of the adjudication of a defendant's habitual offender status if the related criminal charges are tried in a bench trial. Johnson was sentenced to two consecutive five year sentences. Johnson appeals, contending the district court erred in its ruling on the motions to dismiss, and claiming the evidence is insufficient to support his convictions. The State asserts in support of its cross-appeal that the district court erred in failing to bifurcate the determination of habitual offender status from the guilt phase of the trial.

II. Scope of Review.

This appeal presents three issues for our review: (1) whether the district court erred in its ruling on the motions to dismiss, (2) whether the evidence is sufficient to support Johnson's convictions, and (3) wh...